98-22401. Finder's Preference Rule  

  • [Federal Register Volume 63, Number 161 (Thursday, August 20, 1998)]
    [Rules and Regulations]
    [Pages 44585-44587]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 98-22401]
    
    
    
    [[Page 44585]]
    
    -----------------------------------------------------------------------
    
    FEDERAL COMMUNICATIONS COMMISSION
    
    47 CFR Part 90
    
    [WT Docket No. 96-199; FCC 98-182]
    
    
    Finder's Preference Rule
    
    AGENCY: Federal Communications Commission.
    
    ACTION: Final rule.
    
    -----------------------------------------------------------------------
    
    SUMMARY: This action amends the rules to eliminate the finder's 
    preference program in the 220-222 MHz band and in the 470-512 Mhz, 800 
    MHz and 900 MHz Private Land Mobile Radio (PLMR) bands. This action is 
    taken to facilitate geographic licensing in the 220-222 MHz band and to 
    permit Commission resources presently devoted to the finder's 
    preference program to be redirected to other, more efficient channel 
    recovery methods. No further finder's preference requests will be 
    accepted after the adoption date of the Report and Order, July 29, 
    1998, an action which is procedural in nature and which is taken for 
    good cause stated. Finder's preference requests pending as of the 
    adoption date will be processed.
    
    EFFECTIVE DATE: September 21, 1998.
    
    FOR FURTHER INFORMATION CONTACT: Michael J. Wilhelm of the Public 
    Safety and Private Wireless Division, Wireless Telecommunications 
    Bureau at 202-418-0680 or via e-mail at mwilhelm@fcc.gov.
    
    SUPPLEMENTARY INFORMATION:
        1. This is a summary of the Commission's Report and Order (Report 
    and Order) discontinuing the finder's preference program.
        2. Previously, the Commission adopted a Report and Order, 56 FR 
    65857, December 19, 1991, wherein it established a finder's preference 
    program that gave a dispositive licensing preference to persons who 
    identified licensees who were not in compliance with the Commission's 
    construction and operation rules.
        3. In the Second Memorandum Opinion and Order and Third Notice of 
    Proposed Rulemaking in PR Docket No. 89-552, 60 FR 46564 (September 7, 
    1995), the Commission proposed a new licensing plan for the 220-222 MHz 
    service. That licensing plan provided for geographical, rather than 
    site-specific licensing in the 220-222 MHz band.
        4. In the Notice of Proposed Rule Making in WT Docket No. 96-199 
    (NPRM), 61 FR 51877 (October 4, 1996) the Commission proposed 
    elimination of the finder's preference program in the 220-222 MHz band 
    because it appeared inconsistent with the geographical licensing plan 
    for that band. The NPRM also solicited comment on whether or not the 
    finder's preference program should be maintained in the 470-512 Mhz, 
    800 MHz and 900 MHz bands.
        5. Based on review of the record developed in response to the NPRM, 
    the Commission concluded that the finder's preference program should be 
    discontinued for the 220-222 MHz band and the 470-512 Mhz, 800 MHz and 
    900 MHz bands. With respect to the 220-222 MHz band, the Commission 
    found its decision to discontinue the finder's preference program was 
    consistent with earlier actions it had taken in discontinuing the 
    program in other bands. See First Report and Order, Eighth Report and 
    Order and Second Notice of Proposed Rule Making in PR Docket No. 93-
    144, PP Docket No. 93-253, 61 FR 6138 (February 16, 1996); Second Order 
    on Reconsideration and Seventh Report and Order in PR Docket No. 89-
    553, PP Docket No. 93-252, GN Docket No. 93-252, 60 FR 48913 (September 
    21, 1995). Moreover, no commenting party opposed retention of the 
    finder's preference program for the 220-222 MHz band. With respect to 
    the 470-512 Mhz, 800 MHz and 900 MHz bands, after review of the record 
    and internal Commission data regarding the finder's preference program, 
    the Commission decided the program should be eliminated. The Commission 
    did not find persuasive, comments filed by parties urging retention of 
    the program notwithstanding its conceded problems, among them several 
    protracted adversarial contests for ``found'' spectrum. The Commission 
    determined that its own compliance review efforts had been more 
    effective than the finder's preference program in yielding spectrum 
    recovery. Finally, the Commission declined to assign the processing of 
    finder's preference requests to frequency coordinators because the 
    processing of such requests was outside the frequency coordinators' 
    expertise and, in any event, appeals from frequency coordinators' 
    decisions would require resolution by the Commission.
        6. Several commenting parties urged the Commission to process 
    pending finder's preference requests rather than dismissing them, as 
    the Commission had reserved the discretion to do in the NPRM. In light 
    of the relatively few finder's preference requests still pending, the 
    Commission determined that processing of those requests would not 
    impose an undue burden on Commission resources and therefore agreed to 
    process pending requests. However, to forestall an influx of 
    speculative finder's preference requests before the rule eliminating 
    the finder's preference program became effective, the Commission 
    decided not to accept new finder's preference requests after the 
    adoption date of the Order. The Commission determined that the 
    avoidance of such an influx of new requests constituted good cause for 
    not accepting further finder's preference requests and that, in any 
    event, its action in declining to accept new requests was procedural in 
    nature.
    
    Ordering Clauses
    
        7. In view of the foregoing and pursuant to the authority contained 
    in sections 4, 303, and 307 of the Communications Act of 1934, as 
    amended, 47 U.S.C. Secs. 154, 303 and 307 it is ordered that part 90 of 
    the Commission's Rules is amended and becomes effective September 21, 
    1998. It is further ordered that effective upon adoption of this Report 
    and Order, no additional finder's preference requests for the 220-222 
    MHz band or the 470-512 MHz, 800 MHz, and 900 MHz PLMR bands will be 
    accepted for filing.
    
    Procedural Matters
    
        8. The Final Regulatory Flexibility Analysis pursuant to the 
    Regulatory Flexibility Act, 5 U.S.C. Sec. 604, is contained in the 
    attachment at the end of this document.
    
    List of Subjects in 47 CFR Part 90
    
        Communications equipment, Radio.
    
    Federal Communications Commission.
    Magalie Roman Salas,
    Secretary.
    
    Rule Changes
    
        Part 90 of Chapter I of Title 47 of the Code of Federal 
    Regulations, is amended as follows:
    
    PART 90--PRIVATE LAND MOBILE RADIO SERVICES
    
        1. The authority citation for part 90 continues to read as follows:
    
        Authority: Secs. 4, 251-2, 303, 309, and 332, 48 Stat. 1066, 
    1082, as amended: 47 U.S.C. Secs. 154, 251-2, 303, 309, and 332, 
    unless otherwise noted.
    
        2. Revise paragraph (k) of Sec. 90.173 to read as follows:
    
    
    Sec. 90.173  Policies governing the assignment of frequencies.
    
    * * * * *
        (k) This paragraph is only applicable to entities with Finder's 
    Preference requests pending before the Commission as of July 29, 1998. 
    Notwithstanding any other provisions of this part, any eligible person 
    shall be given a dispositive
    
    [[Page 44586]]
    
    preference for a channel assignment on an exclusive basis in the 220-
    222 MHz, 470-512 MHz, and 800/900 MHz (except on frequencies designated 
    exclusively for SMR service) bands by submitting information that leads 
    to the recovery of channels in these bands. Recovery of such channels 
    must result from information provided regarding the failure of existing 
    licensees to comply with the provisions of Secs. 90.155, 90.157, 
    90.629, 90.631 (e) or (f), or 90.633 (c) or (d).
    * * * * *
    
    
    Sec. 90.175  [Amended]
    
        3. Remove paragraph (i)(15) of Sec. 90.175.
    
    Attachment--Final Regulatory Flexibility Analysis
    
        As required by the Regulatory Flexibility Act, 5 U.S.C. Sec. 603 
    (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
    incorporated in the Notice of Proposed Rule Making in WT Docket No. 
    96-199.1 The Commission sought written public comments on 
    the proposals in the NPRM, including comments on the IRFA. The 
    Commission's Final Regulatory Flexibility Analysis (FRFA) in this 
    Report and Order conforms to the RFA, as amended by the Contract 
    With America Advancement Act of 1996.2
    ---------------------------------------------------------------------------
    
        \1\ Amendment of Part 90 Concerning the Commission's Finder's 
    Preference Rules, Notice of Proposed Rule Making, WT Docket No. 96-
    199, 11 FCC Rcd 13016 (1996) (NPRM).
        \2\ Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II 
    of the CWAAA is ``The Small Business Regulatory Enforcement Fairness 
    Act of 1996'' (SBREFA), codified at 5 U.S.C. Sec. 601 et seq.
    ---------------------------------------------------------------------------
    
    I. Need For and Objective of the Proposed Rule
    
        In the NPRM, as our objectives, we proposed to amend Part 90 of 
    our Rules to eliminate the finder's preference program in the 220-
    222 MHz band because we had proposed competitive bidding and 
    geographic licensing for this band. The NPRM also sought comment on 
    (1) whether the finder's preference program should be continued for 
    Private Land Mobile Radio (PLMR) services in the 470-512 MHz, 800 
    MHz, and 900 MHz bands because these bands had few, if any, finder's 
    preference requests, (2) whether the Commission should delay 
    processing finder's preference requests in the 220-222 MHz band, (3) 
    whether the Commission should retain the discretion to dismiss 
    pending finder's preference requests in any frequency band in which 
    the finder's preference is eliminated, and (4) whether ongoing 
    oversight and compliance review programs are adequate enforcement 
    mechanisms so as to justify the elimination of the finder's 
    preference program.
        In this Report and Order, we find that elimination of the 
    finder's preference program in the 220-222 MHz, 470-512 MHz, 800 
    MHz, and 900 MHz bands is appropriate. Pending finder's preference 
    requests will be processed in accordance with Commission's rules.
    
    II. Summary of Significant Issues Raised by the Public Comments in 
    Response to the Initial Regulatory Flexibility Analysis
    
        No comments were submitted in direct response to the IRFA. We 
    have, however, reviewed general comments that may impact small 
    businesses.
        The only impact on small business from this Report and Order is 
    the elimination of the finder's preference program and filings 
    related thereto in the 220-222 MHz, 470-512 MHz, 800 MHz, and 900 
    MHz bands. To date, only one finder's preference request has been 
    filed in the 220-222 MHz band. The elimination of the finder's 
    preference program in the 220-222 MHz band is predicated on the fact 
    that geographic area licensing and competitive bidding have been 
    adopted for this band.3 The competitive bidding and 
    geographic area licensing framework has been designed to implement 
    Congress's goal of giving small business and others the opportunity 
    to participate in the provision of spectrum-based services in 
    accordance with 47 U.S.C. Sec. 309(j)(4)(D). We eliminated the 
    finder's preference program in the 800 MHz and 900 MHz bands when we 
    adopted geographic area licensing and competitive bidding in those 
    bands.4 Therefore, this Report and Order--which 
    eliminates the finder's preference program in the 220-222 MHz band--
    is consistent with our objective to promote efficient licensing and 
    enhance the competitive potential of the 220-222 MHz band and is in 
    accordance with the statutory directives of Section 309(j)(4)(D) of 
    the Communications Act. We believe that the Commission's ongoing 
    oversight and compliance programs are adequate and that the few 
    number of finder's preference requests filed overall justify the 
    elimination of the finder's preference program not only in the 220-
    222 MHz band, but also in the 470-512 MHz, 800 MHz, and 900 MHz 
    bands.
    ---------------------------------------------------------------------------
    
        \3\ See Amendment of Part 90 of the Commission's Rules to 
    Provide for the Use of the 220-222 MHz Band by the Private Land 
    Mobile Radio Service, PR Docket No. 89-522, Implementation of 
    Sections 3(n) and 332 of the Communications Act--Regulatory 
    Treatment of Mobile Services, GN Docket No. 93-252, and 
    Implementation of Section 309(j) of the Communications Act--
    Competitive Bidding, 220-222 MHz, Second Memorandum Opinion and 
    Order and Third Notice of Proposed Rulemaking, PP Docket No. 93-253, 
    11 FCC Rcd 188 (1995).
        \4\ Amendment of Parts 2 and 90 of the Commission's Rules to 
    Provide for the Use of 200 Channels in the Designated Filing Areas 
    in the 896-901 MHz Bands Allotted to the Specialized Mobile Radio 
    Pool, Second Order on Reconsideration and Seventh Report and Order, 
    11 FCC Rcd 2639 (1995); Amendment of Part 90 of the Commission's 
    Rules to Facilitate Future Development of SMR Systems in the 800 MHz 
    Frequency Band, Implementation of Sections 3(n) and 322 of the 
    Communications Act Regulatory Treatment of Mobile Services, 
    Implementation of Section 309(j) of the Communications Act--
    Competitive Bidding, First Report and Order, Eighth Report and 
    Order, and Second Further Notice of Proposed Rulemaking, 11 FCC Rcd 
    1463 (1995).
    ---------------------------------------------------------------------------
    
    III. Description and Estimate of the Number of Small Entities Affected 
    by the Subject Rules
    
        The rules adopted in this Report and Order will require small 
    businesses that desire spectrum in the 220-222 MHz band to 
    participate in the geographic area licensing and competitive bidding 
    process, with the exception of certain channels allocated to Public 
    Safety and Special Emergency Radio Services (SERS) that are not 
    subject to geographic area licensing. The process has been designed 
    to enable small businesses to compete for spectrum. In the 470-512 
    MHz, 800 MHz, and 900 MHz PLMR band services, as well as on those 
    220-222 MHz channels allocated to Public Safety and SERS, small 
    businesses may obtain channels in accordance with the Commission's 
    licensing rules for those bands.
        The PLMR service plays an essential role in a vast range of 
    industrial, business, land transportation, and public safety 
    activities. PLMR systems are used by companies of all sizes 
    operating in all U.S. business categories. Because of the vast array 
    of PLMR users, the Commission has not developed nor would it be 
    possible to develop a definition of small entities specifically 
    applicable to PLMR users. For the purpose of determining whether a 
    licensee is a small business as defined by the Small Business 
    Administration (SBA), each licensee would need to be evaluated 
    within its own business area.
        The NPRM requested comment on the number of small entities that 
    use PLMR for their internal communications needs in the 220-222 MHz, 
    470-512 MHz, 800 MHz, and 900 MHz bands and on the number of small 
    entities that are likely to file finder's preference requests to 
    obtain spectrum for their own internal communications needs. No 
    comments were received. Therefore, the Commission is unable at this 
    time to determine the number of small businesses which could be 
    impacted by the amended rules. However, the Commission's fiscal year 
    1994 annual report indicates that at the end of fiscal year 1994, 
    there were 1,101,711 licensees operating 12,882,623 transmitters in 
    the PLMR bands below 512 MHz. There are also significant numbers of 
    licensees in PLMR above 512 MHz.
        The RFA also includes small governmental entities as part of the 
    regulatory flexibility analysis.5 The definition of small 
    governmental entity is one with a population of less than 
    50,000.6 There are over 85,006 governmental entities in 
    the nation.7 This number includes such entities as 
    states, counties, cities, utility districts, and school districts. 
    There are no figures available on what portion of this number has 
    populations fewer than 50,000. This number, however, includes 38,978 
    counties, cities, and towns, and of those 37,566, or 96 percent, 
    have populations fewer than 50,000.8 The Census Bureau 
    estimates that this ratio is approximately accurate for all 
    governmental entities.9 Thus, of the 85,006 governmental 
    entities, we estimate that 96 percent, or
    
    [[Page 44587]]
    
    81,600 are small entities that may be affected by our rules.
    ---------------------------------------------------------------------------
    
        \5\ See 5 U.S.C. Sec. 601(5) (including cities, counties, towns, 
    townships, villages, school districts, or special districts).
        \6\ Id.
        \7\ 1992 Census of Governments, U.S. Bureau of the Census, U.S. 
    Department of Commerce.
        \8\ Id.
        \9\ Id.
    ---------------------------------------------------------------------------
    
    IV. Description of Projected Reporting, Recordkeeping, and Other 
    Compliance Requirements of the Rules
    
        This Report and Order eliminates the finder's preference program 
    in the 220-222 MHz, 470-512 MHz, 800 MHz, and 900 MHz PLMR bands. 
    The administrative requirements and related costs for filing such 
    finder's preference requests are eliminated. Therefore, no new 
    requirements are imposed by this action.
    
    V. Steps Taken by Agency To Minimize Significant Economic Impact on 
    Small Entities Consistent With Stated Objectives
    
        This Report and Order eliminates the finder's preference program 
    in the 220-222 MHz band because we have adopted geographic area 
    licensing and competitive bidding in this band. The competitive 
    bidding and geographic area licensing framework has been designed to 
    implement Congress' goal of providing small businesses and others 
    the opportunity to participate in the provision of spectrum-based 
    services in accordance with 47 U.S.C. 309(j)(4)(D). We eliminated 
    the finder's preference program in the 800 MHz and 900 MHz SMR bands 
    when we adopted geographic area licensing and competitive bidding. 
    Therefore, the Report and Order is consistent with our objective to 
    promote efficient licensing and enhancement of the competitive 
    potential of the 220-222 MHz band and is in accordance with the 
    statutory directives of Section 309(j)(4)(D) of the Communications 
    Act. The elimination of the finder's preference program in the 470-
    512 MHz, 800 MHz, and 900 MHz PLMR bands should not affect small 
    businesses because the Commission's ongoing oversight and compliance 
    programs are adequate to ensure that unused spectrum is returned and 
    re-assigned efficiently. Additionally, any returned channels in 
    these bands may be applied for by PLMR providers, which are 
    primarily small businesses.
    
    VI. Report to Congress
    
        The Commission will send a copy of this Final Regulatory 
    Flexibility Analysis along with the Report and Order, in a report to 
    Congress pursuant to the SBREFA.\10\
    
        \10\ See 5 U.S.C. Sec. 801(a)(1)(A).
    ---------------------------------------------------------------------------
    
        Note: This attachment will not appear in the Code of Federal 
    Regulations.
    [FR Doc. 98-22401 Filed 8-19-98; 8:45 am]
    BILLING CODE 6712-01-P
    
    
    

Document Information

Effective Date:
9/21/1998
Published:
08/20/1998
Department:
Federal Communications Commission
Entry Type:
Rule
Action:
Final rule.
Document Number:
98-22401
Dates:
September 21, 1998.
Pages:
44585-44587 (3 pages)
Docket Numbers:
WT Docket No. 96-199, FCC 98-182
PDF File:
98-22401.pdf
CFR: (2)
47 CFR 90.173
47 CFR 90.175